State v. Trudeau , 165 Vt. 355 ( 1996 )

Johnson, J.,

dissenting. A closer look at the officer’s testimony and his written affidavit in support of the information tells a story different from that recounted by the majority. According to the affidavit, after arresting defendant for DUI and discovering the marijuana pipe in his pocket, the officer

next checked the defendant’s car .... Under the driver’s seat [he] found a silver metallic marijuana pipe with burnt residue. [He] also located a ziplock baggie with a green material in the same location. On the console near the gear shift [he] located a second smaller amount of a plant like material rolled in a sandwich baggie. This baggie was located inside a zippered coin pouch.

Nowhere in the affidavit did the officer indicate that he returned to the car in order to retrieve the open beer can, or that the bag containing marijuana was visible. His discovery of the marijuana inside the zippered pouch suggests that he did not limit himself to observing items in plain view. Indeed, the officer’s testimony confirms this:

Q. Well, as part of your training . . . you’re taught for example, that you’re not to go into closed containers in cars?

A. No, as a matter of fact I was taught that search incident to arrest I’m allowed to do certain things as a protective sweep.

Q. And so in your mind, you thought you had permission or authority then to go through whatever was in the car, whether it be in the glove compartment or under the seat or wherever to see what was in it?

A. Only in a search for someplace that a weapon could easily be retrieved from.

Based on the affidavit and the officer’s understanding of the law, the sequence of events is clear. After arresting defendant, handcuffing him, and placing him in the police cruiser, the officer undertook a search of defendant’s vehicle, including a search of a closed container that the State concedes was improper. See State v. Savva, 159 Vt. 75, 90-91, 616 A.2d 774, 782-83 (1991) (suppressing evidence found in warrantless search of closed containers in vehicle; search was not supported by exigent circumstances because officer could have seized container and applied to magistrate for warrant). Despite the straightforward language of his affidavit (“[u]nder the driver’s seat I found [the pipe and bag of marijuana]”), however, at the hearing the officer presented a new story: while retrieving the open beer can, he noticed a ziplock sandwich bag containing green plant material partially sticking out from under the seat. When he pulled out the bag, the pipe fell out as well. At best, the officer’s description of evidence falling into his lap, as it were, is questionable; when considered in light of the affidavit, which mentions none of this, the story becomes incredible.

I recognize, of course, that this Court ordinarily gives deference to the factual findings of the trial court. See State v. Zaccaro, 154 Vt. 83, 86, 574 A.2d 1256, 1258 (1990) (Court will not disturb trial court’s findings of fact unless they are unsupported by the evidence or clearly erroneous). It is the responsibility of the finder of fact to evaluate the credibility of a "witness. See State v. Ives, 162 Vt. 131, 135, 648 A.2d 129, 131 (1994) (trial court determines credibility of witnesses and persuasive effect of testimony). Here, however, the trial court made no factual findings and suppressed the evidence on the basis that the open beer can had minimal evidentiary value. The only explicit reference to the officer’s testimony is somewhat skeptical (“I think [the officer] even said that he could see [the beer can] was partially filled [by] shining the flashlight through the top. I don’t know how much you can see through the top of an open beer can but that was his testimony, we accept it.”). At any rate, given the trial court’s rationale for its decision, the court had no need to evaluate the officer’s story.

Nonetheless, the majority’s reversal of the trial court assumes that the bag of marijuana and the pipe were in plain view. Indeed, the majority merely recounts the officer’s testimony as the facts of the case without mentioning the contrary affidavit. Given the lack of findings and the inherent implausibility of the officer’s testimony, I cannot join this decision. I would affirm the trial court’s decision suppressing the marijuana and the pipe.